Why Kerr Is Wrong

Paradoxically, from a practical standpoint, if Kerr's article was correct, then he'd never have had to write his article because Carpenter would never have made it to the Supreme Court. Cases don't go to the highest court in the country if they have solutions that can be written in a single paragraph. The Supreme Court only takes cases that are going to have a big impact, like reexamining the third party doctrine after openly criticizing it several years ago.

From a theoretical standpoint, though, Kerr is still wrong because he misinterprets the question being asked. It's not whether police can ask a cell phone carrier for information about one of their customers; it's about whether the phone company has to provide that information if the police don't have a search warrant.

Even Kerr's reference to the eyewitness rule misses the crucial point – Carpenter is not about whether police can “interview” someone, it's about whether that person has to respond. Based on Kerr's article, he seems to think that police should be able to compel anyone they see to respond to their questions without having to show probable cause.

Maine Criminal Defense Attorney William T. Bly

Carpenter v. U.S. is setting up to be one of the most important criminal cases in the past decade and is bound to have a significant impact on how people and major businesses interact with each other in the future. If Orin Kerr and the prosecution get their way, the government will see the decision as a green light to push their way into more and more private matters that nets law enforcement the access they need to reach the information they want. If the defense team in Carpenter wins the day, major companies from internet and phone service providers to banks and even department stores will finally start putting their foot down when police demand they turn over reams of customer data to satisfy their every whim.

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About the Author

William T. Bly, Esq. is a graduate of Rutgers College where he majored in Political Science with a minor in U.S. History. Attorney Bly attended and graduated the University of Maine School of Law. During his time in law school, Attorney Bly focused on criminal defense.

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